Direct Access Barrister- What It Means?

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Direct Access Barrister- What It Means?

Until now members of the public have not been allowed to go directly to a barrister for legal advice.

In the past if you needed the expert opinion of a barrister or a barrister to represent you in court you had to first engage the services of a solicitor who would then instruct the barrister on your behalf.

Recent changes mean for the first time members of the public can now go directly to a barrister without having to also involve a solicitor. You can now instruct a Barrister directly, even if you are eligible for legal aid.

Direct access to a barrister brings a number of significant benefits both in terms of cost and access to expert advice:

Instructing Direct Access Barristers

Historically, barristers have not been able to accept instructions to carry out legal work directly from members of the public. However, the Bar Council, the organisation that represents and regulates barristers in England and Wales, changed the rules so that barristers are now allowed to accept such work.

The Public Access Scheme is designed so that you can get legal advice from a barrister without ever having to employ a solicitor, as you would have to do in the past. This means that you only have to pay for one legal advisor rather than two, resulting in a more efficient and cost-effective service.

Barristers have lower operating costs than a firm of solicitors. As a result, you are likely to pay considerably less than retaining the solicitor alone and more than substantially less than instructing both. Our hourly rates in comparison to a London solicitor of equivalent seniority are almost always significantly less. This is attributed to his lower overheads and the different way in which barristers work and are organised. Importantly, you get direct access to a specialist legal advisor and advocate, at a time of your choice – not just when a problem gets to court and the solicitor then decides to instruct the barrister.

In short, by allowing you to approach a barrister without the cost of a solicitor, you should be more able to afford the legal advice and representation you need.

To make an enquiry in the first instance, contact Barristers Chambers clerks

What are the benefits of Direct Access Barristers?

The recent Public Access Rules provide that members of the public are now able to instruct a barrister directly. This represents a significant change as in the past a solicitor would have to be engaged before the expert assistance of a barrister could be sought.

Solicitors and barristers represent the two branches of the legal profession in England and Wales. Their roles have always been separate however the lines of division are becoming less distinct, with overlaps developing. Direct access is a key development in this evolution. A solicitor conducts litigation and a barrister does not. Examples of the work a solicitor will carry out include; interviewing clients to take witness statements,, gathering and organising evidence, issuing proceedings, instructing experts, making offers to settle and handling client money. By contrast, the barrister has a referral role as a legal expert. He will advise a solicitor on the law and case-management tactics, produce written opinions, draft formal documents for service by the client or by a solicitor and appear in court.

‘Public Access’ enables members of the public and businesses to instruct a barrister directly to provide legal advice or representation in court. Rather than having to instruct a solicitor to appoint a barrister for you, Public Access allows the public or businesses to contract with (instruct) a barrister directly. The barrister will accept your instructions to provide legal advice or to represent you in court. You can then be advised and guided through the whole legal procedure by the barrister rather than by a solicitor.

This has a significant cost-saving impact on your case as well as providing experienced and expert assistance from the outset. As a Public Access barrister, we have helped people from all parts of the jurisdiction. Our barristers are qualified to accept cases under the Public Access Scheme.

For more details on the work covered, fees and other enquiries please see the appropriate tab to the top left of this page.

The benefits of using the Public Access Scheme can potentially be considerable, making access to justice:

FREQUENTLY ASKED QUESTIONS

Below are some frequently asked questions. The answers below are based upon guidance issued by the Bar Council.

As set out above, members of the public may now go directly to a barrister without having to involve an instructing solicitor. In the past it was necessary for individuals and businesses to use a solicitor. The solicitor would then instruct the Barrister to provide typically advice on the merits of a case and representation at court hearings.

With Public Access, the barrister’s role remains essentially the same, except that now members of the public may instruct a barrister themselves. As a general rule, if your case falls into one of the following categories you should be able to instruct a Barrister on Public Access:

  • You need legal advice and analysis
  • You are engaged in a course of correspondence
  • You want work carried out before litigation starts
  • You wish to negotiate with the other side
  • You wish to appeal against a decision
  • You wish to avoid litigation altogether
  • You have a trial or other court hearing scheduled
  • The case is not contentious at all, but requires advice or drafting

    Barristers still work closely with firms of solicitors in the cases which are not suitable for Public Access. It may be that your case is better suited to having a solicitor involved. One such example may be where there are a large number of parties involved and so the administrative burden becomes an obstacle for a non-lawyer to deal with. Another example would be where you require the holding of monies and specific conduct of litigation. Barristers cannot perform these functions. In such a cases, the barrister can recommend a solicitor to carry out the necessary work and still remain involved with your case, should you so wish.

The main advantage of the public access scheme is that it could potentially save you money whilst giving you access to the Bar, since you would be paying for a barrister only instead of a barrister and solicitor. However, it is important to consider that you would have to act, to a certain extent, as the solicitor in your own case. For example, you will be required to lodge documents at court and send letters after the barrister has drafted them for you. These tasks are not especially taxing but they can be time-consuming. Almost all areas of the law require that certain timing deadlines are met. The responsibility for these will lie with the client who will be advised and warned well in advance of any approaching time limit. Failure to comply with court time limits can result in adverse costs orders being made (ie being ordered to pay the other side’s costs for the inconvenience caused) and in extreme cases, a case can be ended completely by a Judge.

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a) A barrister may appear on your behalf at Court;

b) may give you legal advice

c) may draft documents for you, such as a will

d) may advise you on the formal steps which need to be taken in proceedings before a court or other organisation and draft formal documents for use in those proceedings.

e) draft and send letters for you

f) prepare a witness statement for you

g) Where a case requires an expert witness (for example, a surveyor), may advise you on the choice of a suitable expert and may draft a letter of instruction which you can then send to the expert as a letter from you on your own notepaper.

a) A barrister cannot issue proceedings on your behalf or to issue other applications or to take other formal steps in court or other proceedings. You would have to send the documents to the court, although the he could help prepare them for you and advise you of any applicable time-limits.

b) A barrister is not allowed to instruct an expert witness on your behalf ( but please note ‘g’ above) and

c) is not allowed to take responsibility for the handling of clients’ affairs, (for example as a trustee), or to handle clients’ money.

In considering whether your case is suitable for Public access, the following are key considerations:

a) The nature of the work which you wish him or her to undertake

b) Your ability to deal with any aspects of the case which would normally be carried out by a solicitor that cannot be covered by a public access barrister.

Much depends on the circumstances of your case. Here are some possibilities:

a) The barrister might decide that your case is suitable for public access and that there is no need for the involvement of a solicitor. Cases can change in complexity If circumstances change, the barrister may have to advise you that a solicitor will need to be instructed.

b) Although your case may become unsuitable for public access in the future, it is suitable for public access for the time being. In such a case, the barrister will inform you:

i) of the work which is suitable for public access

ii) the likely point at which your case will become unsuitable for public access and

iii) that he or she will have to withdraw at that stage if you do not instruct a solicitor.

c) Your case is such that (whether because of its complexity, or because of the stage which it has reached) it is not suitable for public access and that a solicitor is required. In this situation, you should be told why your case is not suitable and that he or she would be prepared to act for you if instructed by a solicitor. In such circumstances you can ask for a suitable solicitor to be recommended. If the barrister decides to accept your instructions, you will be sent a client care letter.

Barristers are trained as specialist advisers and advocates. This means that they become involved where expert legal advice is needed, where documents need to be drafted for their clients to use, or for advocacy (presenting a case in court or before some other tribunal or organisation). Barristers usually become involved therefore either advising before a case is brought, or at the early stages, or when a case has to be heard at court, including a final trial.

Solicitors organise and keep a file of your case. They can hold monies for you and can deal with your personal affairs, for example with wills and as acting as trustees for your Estate. They also give advice to and draft documents for their clients to use or may opt to instruct a barrister to provide this service. Some solicitors also provide advocacy services to their clients, although many prefer to instruct a barrister to do this.

By law, barristers are not able to provide some of the services that solicitors offer. At present only a solicitor may conduct litigation and take the formal steps that are necessary to progress and action, for example issuing a claim at court and paying the relevant court fees.

As stated above, A barrister may choose whether or not to accept public access work. Making this assessment is the first duty of a barrister and will be the first question to consider. If it is decided that a case is not suitable, the barrister must decline the instructions. Throughout the case, there remains a continuing duty to consider whether a case remains suitable for public access, and he or she must refuse to continue to act on a public access basis if it is no longer suitable. Cases do change as they progress and so whilst a case may start of as suitable for Public Access, it may become unsuitable following development that may occur.

A barrister may not refuse to accept instructions:

a) On the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability or political persuasion; and

b) In the case of advocacy ( court representation) work, on the grounds:

i) That the nature of the case is objectionable to him or her or to any section of the public; or

ii) That your conduct, opinions or beliefs are unacceptable to him or her or to any section of the public.

Barristers must satisfy a number of conditions before they can accept public access work. Subject to limited exceptions, before a barrister is permitted to accept public access work he or she must have:

a) practised for a total of three years following the completion of training

b) attended a “public access” training course approved by the Bar Standards Board and

c) given certain notices which are required to be given by the Bar Code of Conduct.

The first conference – proof of your identity
In almost every case that Duncan accepts, there will be a first conference in my Chambers, Lamb Building. I will require satisfactory evidence of your identity – that is, proof of your name, date of birth and current address. The type of evidence required will depend on the circumstances. For example:

a) If you are acting as an individual, you may be required to produce in person your current passport or other national identity card or a new form of driving licence (with a photograph) together with a recent utility bill, bank or building society statement.

b) If you are acting on behalf of a company, you will need to produce a certified copy of the Certificate of Incorporation, the latest accounts filed at Companies House and evidence that you are authorised to act on behalf of the company.

A copy of these documents will be taken and put on your file. The barrister is required to keep a copy of all your relevant documents for at least 5 years. The policy of Temple Barrister direct is to keep copies for 6 years.

What happens next?

If your case is suitable for public access, you and the barrister will have to agree the terms on which he or she is to carry out the work. Those terms will be set out in a client care letter which will be sent to you (Please see the Service and Fees section of this website for a model Client Care letter and below). If your case is not suitable for public access, the barrister will tell you so. If you wish, he or she may recommend a suitable solicitor for you to instruct.

What is a client care letter?
The client care letter records the terms of the agreement between you and the barrister. It is a very important document and you must read it carefully.

It contains a description of the work to be undertaken, the basis on which you will be charged for that work, and the other terms of the agreement between you and the barrister. If you are unclear about, or disagree with any of the contents of that letter, you must raise your concerns with the barrister immediately. Once signed, the client care letter acts as the contract between you and the barrister.

How will I be charged?

(The guidance that follows comes directly from the Bar Council)

A barrister usually charges according to their level of experience, the complexity of the case and the length of time involved in dealing with it. It is important that the cost to you, and the stage at which the fee is payable, is agreed at the outset, and that the terms of the agreement are clear to both you and the barrister.

There are no formal scales of fees for barristers’ work. The amount to be charged for any particular piece of work, and when the fee becomes payable, is a matter for negotiation between you, the barrister and their clerk. All public access barristers are independent self-employed practitioners, competing with each other. If you consider the fee proposed by one barrister to be too high, try another barrister.

Where the fee relates to a hearing, the barrister is normally entitled to the fee,regardless of whether or not the hearing goes ahead. If that is to be the case, the barrister should tell you at the outset. You may, if you wish, try to agree a different basis for payment of the fee in such a case.

In other cases (whether for a meeting or for a written advice), it may be possible to fix a fee in advance for the work. However, that will not be possible in every case.Where it is not possible, you should ask for an estimate. You may be able to agree with the barrister that there should be a “ceiling” on the fee charged for a particular piece of work.

If you agree a fee in advance of the work being done, then the barrister may require that fee to be paid before carrying out the work. Where a fee is not fixed in advance and the work involves the production of paperwork (for example, the drafting of a contract), the barrister may nevertheless require you to pay for the work after they have completed it and before releasing it to you. If that is to be the case, the barrister should tell you at the outset.

Conditional fee agreements (agreements under which a fee becomes payable only in the event of success in a case) are possible. However, it is unlikely that barristers will be willing or able to undertake public access work on a conditional fee basis, save in very rare cases. Again, this is matter of negotiation between you and the barrister. The barrister is required to keep sufficient records to justify the fees that they are charging. You are entitled to ask for details to justify the fee that you are being charged.

Can a barrister stop acting for me after they have accepted my instructions?

Yes, but this will only happen in a small number of cases. There will be some rare occasions when the barrister has to stop acting for you. In public access or direct access barristers cases,

A barrister must stop acting for you if they consider that the case is no longer suitable for public access. The barrister may be able to assist if, as a consequence of them no longer continuing to act for you, you will or may experience difficulties in relation to an imminent hearing.

In public access cases, a barrister is also required to cease to act where they have formed the view that it is in your interests or the interests of justice that you instruct a solicitor or other professional person. In such cases:

a. Your barrister is under a continuing duty to consider whether your case remains a suitable case for public access. If they form the view that it is not, you will be advised of this fact. If you then instruct a solicitor or other professional person able to provide instructions to the barrister, they may continue to act for you. If you do not, your barrister must cease to act for you.

b. If you are a party to proceedings (ie you have brought a case against another person or a case has been brought against you) in which a hearing is imminent, and you are likely to have difficulty in finding a solicitor in time for the hearing, your barrister should provide you with such assistance as isproper to protect your position. Although your barrister may not continue to work for you on a public access basis, they may be able to assist you by, for example:

i) drafting letters for you to send, asking for an adjournment of the hearing;

ii) writing a letter to the court in support of that application, explaining that they have had to withdraw and, if appropriate, explaining the reasons for doing so; and

iii) assisting you to find a solicitor.

Can I instruct a barrister directly when I have already instructed solicitors?

Yes, you may instruct a barrister directly even though you have already instructed solicitors. If you do so, the barrister will still have to consider whether they should accept your instructions. However, the fact that you have retained solicitors is not in itself a reason for refusing to accept your instructions; nor may the barrister contact your solicitors without your permission. However, there may be cases, eg where your case involves existing litigation, where a barrister will refuse to accept your instructions unless you give them permission to contact and liaise with your solicitors and you also give your solicitors the necessary permission to provide information to the barrister.

Confidentiality and compulsory disclosure of information

Your barrister is under a strict professional duty to keep your affairs confidential. This legal professional privilege protects your communications with your barrister from disclosure. The only exception is that any lawyer, eg a barrister or a solicitor, may be required by law to disclose information to governmental or other regulatory authorities, and to do so without first obtaining your consent to such disclosure or telling you that they have made it.

Complaints:

If you have a complaint about your barrister, then in the first instance, you should try the complaints system maintained by your barrister or his or her Chambers.

Information on how to do this will have been provided to you in the initial client care letter.

If you are not satisfied with the handling or outcome of your complaint by your barrister or his or her Chambers, then you can contact the Legal Ombudsman. The Legal Ombudsman is an independent organisation. It deals with complaints about the service provided by all types of lawyers in England and Wales. The Legal

Ombudsman can decide whether or not the service you received from your barrister was satisfactory, and can:

· Award compensation for poor service;

· Consider whether the fees paid, or have been charged, should be reduced; and

· Decide whether you should receive an apology.

Any complaint to the Legal Ombudsman should be made within 6 months of receiving the final response to your complaint from your barrister or his/her Chambers (provided the response specifically notifies you of your right to complain to the Ombudsman and of the six month time limit). A complaint to the Legal Ombudsman must also not be made more than 6 years after the problems arising and not more than 3 years after you become aware of the problem.

The Legal Ombudsman will assess your complaint and determine whether there are any concerns about professional misconduct (professional misconduct is when a barrister has not kept to the Code of Conduct for barristers, and, as a result, disciplinary action might need to be taken.). If your complaint relates to potential professional misconduct, the Legal Ombudsman will refer the relevant parts of your complaint to the Bar Standards Board for consideration. If your complaint needs to be referred you do not need to do anything. The Legal Ombudsman will let you know if any aspect of your complaint has been referred and the Bar Standards Board will also contact you to confirm this. The Legal Ombudsman can give you more detailed information on how to make a complaint. You can contact the Legal Ombudsman:

By phone: 0300 555 0333
By email: enquiries@legalombudsman.org.uk
Through their website: www.legalombudsman.org.uk
By post: PO Box 15870, Birmingham, B30 9EB

Direct Access to a Barrister gives you the following advantages:

A Direct Access barrister can:

Give you written advice or advice in conference about: